New York Court of Appeals, 1980

Florence v. Merchants Central Alarm Co.

New York Court of Appeals · Decided October 7, 1980 · Cooke, Fuchsberg, Gabrielli, Jasen, Jones, Meyer, Wachtler

51 N.Y.2d 793; 412 N.E.2d 1317; 433 N.Y.S.2d 91; 1980 N.Y. LEXIS 2650

Cases that cite this one

44 later published cases cite this decision. The 25 that cite it most often are listed here.

In re Winer (United States Bankruptcy Court, S.D. New York 1984)
Sanif, Inc. v. Iannotti (Appellate Division of the Supreme Court of New York 1986)
Corwin v. NYC Bike Share, LLC (District Court, S.D. New York 2017)
American Automobile Insurance v. Rest Assured Alarm System, Inc. (District Court, S.D. New York 2011)
Anunziatta v. Orkin Exterminating Co., Inc. (District Court, N.D. New York 2001)
Tate v. Clancy-Cullen Storage Co. (Appellate Division of the Supreme Court of New York 1991)
Bohn Heat Transfer v. General Electric Co. (Ill. App. Ct. 1991)
Calvin Klein Ltd. v. Trylon Trucking Corp. (2d Cir. 1989)
Collado v. Port Auth. of N.Y. & N.J. (Appellate Division of the Supreme Court of New York 2025)
Baumgardner v. Bimbo Food Bakeries Distribution, Inc. (District Court, N.D. Ohio 2010)
Sommer v. Federal Signal Corp. (N.Y. 1992)
Musket Corporation v. Suncor Engy (U.S.A.) Mkt, In (5th Cir. 2019)
irth Solutions, LLC v. S&S Utilities Engineering, LLC (District Court, W.D. New York 2019)
irth Solutions, LLC v. Atlantic InfraTrac, LLC (District Court, W.D. New York 2019)
Abacus Fed. Sav. v. Adt SEC. (N.Y. 2012)
Abacus Federal Savings Bank v. ADT Security Services, Inc. (N.Y. 2012)
ERE LLP v. Spanierman Gallery, LLC (Appellate Division of the Supreme Court of New York 2012)
Martin v. Citibank, N.A. (Appellate Division of the Supreme Court of New York 2009)
Peluso v. Tauscher Cronacher Professional Engineers, P. C. (Appellate Division of the Supreme Court of New York 2000)
Saxony Ice Co. v. Little Mary's American Bistro (Appellate Division of the Supreme Court of New York 1997)
Florence Corp. v. Penguin Construction Corp. (Appellate Division of the Supreme Court of New York 1996)
Best v. Nemoto Yutaka (Appellate Division of the Supreme Court of New York 1996)
Hancock v. City of New York (New York Supreme Court 1994)
Metropolitan Life Insurance v. Noble Lowndes International, Inc. (Appellate Division of the Supreme Court of New York 1993)
Ackerman v. Dobbs (Appellate Division of the Supreme Court of New York 1992)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion of the Court

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs.

The contract provided that "The sole duty of the Contractor is to notify the Police Department and the Subscriber by calling on the telephone if a signal is received in the Central Station which might indicate illegal entry” (par 4) and that "the Contractor assumes no responsibility whatsoever for the *795condition of said Police Alarm transmitter or for any loss sustained by the Subscriber through burglary or through any other cause, during the period within which the contract is in force. It is agreed that the Contractor is not an insurer and that the payments hereinbefore named are based solely on the value of the service described and, in case of failure to perform such service and a resulting loss, the Contractor’s liability hereunder shall be limited to and fixed at the sum of Fifty Dollars ($50.00) as liquidated damages and not as a penalty, and this liability shall be exclusive” (par 7).

Despite its erroneous reference to "liquidated damages” (see Rinaldi & Sons v Wells Fargo Alarm Serv., 39 NY2d 191, 197), defendant’s contract, unlike the sprinkler contract involved in Melodee Lane Lingerie Co. v American Dist. Tel. Co. (18 NY2d 57), is not one "affecting real property” or for "services rendered in connection with the construction, maintenance and repair of real property” within the meaning of section 5-323 of the General Obligations Law. Defendant was, therefore, free to limit its liability (ibid.; Ciofalo v Vic Tanney Gyms, 10 NY2d 294) without offering a greater liability for a greater charge, subject only to the requirement that the limitation be not so obscured (as, for example, a baggage check not in usual contract form, see Klar v H. & M. Parcel Room, 270 App Div 538, affd 296 NY 1044; Howard v Handler Bros. & Winell, 279 App Div 72, affd 303 NY 990) as to make it probable that it would escape plaintiffs’ attention. Here the type in which the contract was printed is uniform in size and contained entirely on the face of one sheet of paper, and there are no paragraph headings or subtitles that could mislead a reader. If plaintiffs read the contract at all they were aware of the limitation, and the law’s teaching since Pimpinello v Swift & Co. (253 NY 159) has been that if they could read it, the fact that they did not is immaterial, absent evidence of fraud.

In this commercial setting, where the language of the limitation is clear, there is no necessity to "resort to a magnifying glass and lexicon” (see Gross v Sweet, 49 NY2d 102, 107), no governing statute and no special relationship between the parties that would warrant relieving plaintiffs of their contract. The Appellate Division’s direction of summary judgment for plaintiffs in the amount of $50 was, therefore, correct.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur in memorandum.

Order affirmed.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.